Correct, Constitutional, and not Going Anywhere
In the past two years, President Obama and Congress have invested heavily in economic recovery, pulling America back from the brink of a second Great Depression and laying the foundations for renewed growth.
The recovery is in progress. But in the shadow of a global financial crisis and a deep recession, unemployment remains high and the American people need Washington to stay focused on job creation.
Americans will no doubt be confused by the priorities of the new Republican majority in the U.S. House of Representatives. Will they dedicate the first month of the 112th Congress to job creation, as we did in the 111th? No. House Republicans have announced their top priority: to deny millions of low-and middle-income Americans health care and increase the deficit by repealing health care reform, a signal achievement of the previous Congress.
Their effort is doomed to fail; the Senate will not pass nor would the President sign any such law. But House Republicans will nevertheless pay lip service to the Tea Party activists who put them in power by forcing a vote on repeal.
Opponents of health care reform have rallied around a Constitutional objection to the "individual mandate," the provision of the reform law that requires Americans to purchase health insurance. They argue that Congress has no Constitutional authority to mandate coverage.
They are wrong.
The powers of the Congress are enumerated in Article I, Section 8 of the Constitution. Among them are the powers to raise and maintain the military, to declare war, to print and manage the currency, to establish federal courts and to make bankruptcy laws.
Critically, this section also grants Congress broad power "to regulate commerce with foreign Nations, and among the several States." Congressional power to regulate interstate commerce is one of two key Constitutional foundations of the health care law. Under existing case law, Congress has clear authority under the commerce clause to regulate health care and health insurance, which undeniably impact interstate commerce and contribute more than 17 percent of U.S. Gross Domestic Product.
The other Constitutional foundation of the health care law is the final Congressional power enumerated in Article I, Section 8: the power of Congress to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." Congress not only can regulate the health insurance industry; it can establish the laws necessary and proper for carrying out that regulation.
The individual mandate is an essential plank of health care reform, whose core objectives are expansion of access to quality, affordable care and prohibition of insurance practices that deny necessary care to sick Americans. A key - and popular - provision of reform is the ban on discrimination against patients who are already sick. Without the individual mandate, Americans could abuse this provision by waiting to get insurance until after they are diagnosed with an illness. Insurers would be required to cover care even though the consumer had not been paying premiums to cover the expense. The cost of that care would be passed along to those who are already insured, hospitals, taxpayers and doctors. Such a system would be incoherent, ineffective and unfair.
Only through the individual mandate can we implement the ban on discrimination against Americans with pre-existing conditions and help millions afford coverage. It is a necessary provision of common-sense regulations that expand Americans' access to care and stop abusive insurance practices. It is necessary, proper, and falls squarely within the powers of Congress enumerated in Article I.
This debate may well be headed to the Supreme Court. But decades from now, Americans will wonder what all the fuss over health care was about. We passed legislation that expands access to insurance for millions of Americans. It will prevent death from treatable illness for Americans who previously could not afford care. It saves the taxpayer money and it is Constitutional.
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